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Sandy Brown, J.D.Research Contracts Officer 2

FAQs: Export Controls

What are export control regulations?

Export control regulations are federal laws that limit the export of certain materials, devices and technical information or software related to such materials and devices to foreign countries and to foreign persons, whether those foreign persons are inside or outside the United States. Additionally, they prohibit the unlicensed export of certain commodities or information for reasons of national security or protections of trade.

What U.S. agencies govern export controls?

There are three main agencies involved in exports/export controls.

Bureau of Industry and Security

The Department of Commerce by the Bureau of Industry and Security (BIS) through its Export Administration Regulations (EAR), Title 15, § 730-774 of the Code of Federal Regulations controls goods and technology that have a dual use (commercial and potential military application), and deemed exports which are listed on the Commerce Control List (CCL). For a list of controlled technologies, see 15 CFR 774, Supplement I.

Directorate of Defense Trade

The U.S. Department of State by the Directorate of Defense Trade (DDTC) under the International Traffic in Arms Regulations (ITAR), 22 CFR §120-130 controls defense articles and defense services which are listed on the United States Munitions List (USML). For a list of controlled technologies, see 22 CFR 121.1.

Office of Foreign Assets Control

The U.S. Treasury Department's Office of Foreign Assets Control (OFAC) administers and enforces economic and trade sanctions that have been imposed against specific countries based on reasons of foreign policy, national security or international agreements. OFAC covers 31 CFR §500-599 which:

Regulates the transfer of items/services of value to embargoed nations,

Prohibits payments/providing value to nationals of sanctioned countries and some specified entities/individuals, and

May prohibit travel and other activities with embargoed countries and individuals even when exclusions to EAR/ITAR apply.

View full descriptions of all countries currently subject to boycott programs.

What is an export?

The export control regulations define an export as:

Any oral, written, electronic or visual disclosure, shipment, transfer or transmission of an item, including commodities, software or technology, outside the United States permanently or temporarily to anyone, including a U.S. citizen, a non-U.S. individual or foreign national anywhere in the world including in the U.S. ("deemed export"), or a foreign embassy or affiliate of any commodity, technology (information, technical data, or assistance) or software/codes.

Any oral, written, electronic or visual disclosure, transfer or transmission to any person or entity of a controlled commodity, technology or software/codes with an intent to transfer it to a non-U.S. entity or individual, anywhere in the world including in the U.S. (even to a foreign student or colleague at UH) or a foreign embassy or affiliate.

It is important to emphasize that only exports for which the U.S. government requires a license are those that are listed on the export controlled lists. The vast majority of exports do not require the prior approval of the U.S. government.

Note: A "Foreign National" is any person that is not a U.S. Citizen or National, a U.S. Lawful Permanent Resident, a person granted asylum, person granted refugee status, or temporary resident, persons in the U.S. in non-immigrant status (for example, H-1B, H-3, L-1, J-1, F-1 Practical Training, L-1) or persons unlawfully in the U.S.

What is a “deemed export”?

The transfer of “technical data” (ITAR term), “technology” (EAR term) or source code by any method to a foreign national in the U.S. or abroad is deemed to be an export to the home country of the foreign national. This restriction also includes “technical assistance” from the foreign national.

What is an export under these laws?

Export is the transfer of controlled technology, items, software, or defense services to a foreign person in the U.S. or abroad by any means, such as:

Faxes

Telephone discussions

Email communications

Computer data disclosure

Written or oral disclosure

Face-to-face discussions

Development and manufacturing activities

Foreign students or scholars conducting research

Foreign national employees involved in certain research

Training sessions

Tours which involve visual inspections

Why are certain exports controlled?

Certain exports are controlled because of the following reasons:

The very nature of the export may/has an actual or potential military application or poses economic protection issues.

The U.S. government has a legitimate concern regarding the destination country, organization, or individual, and/or

The U.S. government is concerned about the declared or suspected end use or the end user of the export.

Specific examples of these include:

National Security

Proliferation of chemical and biological weapons

Nuclear Nonproliferation

Missile Technology

Anti-Terrorism

Crime Control

High Performance Computer

Regional Stability

Short Supply

U.N. Sanctions

How can export controls affect my research?

UH may be required to obtain prior governmental approval, in the form of an export license, before allowing the participation of foreign national faculty, staff or students in affected research unless an exclusion or exemption is available. In some cases, a license may not be available at all because of the country involved. In addition to affecting the persons that may participate in the research project on campus, the following are examples where a license may be required:

Presentation/discussion of previously unpublished research at conferences and meetings where foreign national scholars may be in attendance.

Research collaborations with foreign nationals and technical exchange programs.

Transfers of research equipment abroad.

Visits to your lab by foreign scholars.

What kind of projects raise export control questions?

Any research activity may be subject to export controls if it involves the actual export or "deemed" export of any goods, technology or related technical data that is either a "dual use" (commercial in nature with possible military application) or inherently military in nature. Work in the following areas is considered high risk:

Engineering

Space sciences

Computer Science

Biomedical research with lasers

Research with encrypted software

Research with controlled chemicals, biological agents, and toxins

In addition, any of the following may raise export control questions for a project:

Sponsor restrictions on the participation of foreign nationals in the research.

Sponsor restrictions on the publication or disclosure of the research results.

Indications from the sponsor or others that export-controlled information or technology will be furnished for use in the research. The physical export of controlled goods or technology is expected.

Are there any exclusions from export control licensing which may apply?

A license is not required to release technology information to foreign nationals on campus in the U.S. if one of these three exclusions applies:

The Public Domain Exclusion

The Public Domain Exclusion exempts the sharing of technical data or information with a foreign national inside the U.S. as a part of a class, laboratory, or conference or seminar, if the same technical data or information has already been widely published or is accessible or available to the public through the following:

newsstands and bookstores

subscriptions available to any individual

second class mailing privileges

libraries open to the public

patents available at any patent office

conferences generally accessible to the public/tradeshows

public release after approval by U.S. government or

fundamental research

The Education Exclusion

The Education Exclusion exempts from export controls the sharing of information commonly taught in colleges and universities (ITAR) or educational information released by instruction in catalog courses and associated teaching laboratories (EAR). Therefore, in general, no license is required to share information as part of a course being taught. Note, however, that the education exclusion does not apply to proprietary information and certain information deemed classified or sensitive by the federal government.

The Fundamental Research Exclusion

The Fundamental Research Exclusion exempts from coverage basic and applied research in science and engineering performed by institutions of higher learning in the U.S. as long as the research carried out openly and without restrictions on publication or access to or dissemination of the research results. Fundamental research is distinguished from proprietary research and from industrial development, design, production and product utilization because the results of the latter are restricted for proprietary or national security reasons.

NOTE: The EAR and the ITAR' differ on what is considered published information. The EAR requires that the information "has been", "is about to be", or "is ordinarily published". The ITAR requires only that the information has already been published.

What happens if a proposed project falls outside the “fundamental research” exception and is, thus, subject to export controls restrictions?

If the project cannot remain within the relevant "fundamental research" exception under the ITAR or the EAR (as may be the case), the Office of Contracts and Grants will work with the investigator to minimize the compliance burden under those laws.

For situations arising under the EAR, those regulations have multiple categories of "license exceptions". The Office of Contracts and Grants may assist the investigator to fit any physical or "deemed" exports within one or more of those license exceptions and thus preclude the need for export licenses. If the Office of Contracts and Grants cannot use any of these alternative means of compliance with applicable law, it may be necessary for the university to secure an export control license from the appropriate government agency before the investigator can proceed with the work. It is the university's policy that all such license applications will be filed by the Office of Contracts and Grants and not by an individual investigator or department.

However, if the "fundamental research" exception does not apply, no alternatives are available and an export license cannot be secured from the relevant agency within a reasonable time and under reasonable conditions, the project will either need to be revised to bring it back under the "fundamental research" exception or else the project may not be undertaken at the university. [TOP]

If a license is needed, what is the process?

Contact the Division of Research's Office of Contracts and Grants to arrange appropriate support both within the university, and, where necessary, outside the university to address export control and license issues. Unless there is an urgent need for expedited review and approval, if all relevant information is current, there is usually a lengthy processing time that make take from 1 to 3 months to secure a license to export the controlled materials from the U.S. or to transmit them to a non-U.S. citizen or permanent resident within the U.S. [TOP]

What are the legal consequences for violating the export control laws?

The consequences for noncompliance are very serious for both the University and the investigator (including fines up to $1,000,000 and/or imprisonment up to 10 years for individuals). These penalties apply to single violations; multiple violations in the same project can easily result in enormous penalties.